California officials, including Earl Warren, once opposed...

1of3Earl Warren, regarded as a strong supporter of civil rights, backed a suit challenging birthright citizenship for children of Japanese immigrants when he was California attorney general.Photo: NET Journal

2of3Earl Warren arrives at the Supreme Court building in 1953 to become chief justice of the United States.Photo: Henry Griffin / Associated Press 1953

President Trump’s promise to do away with birthright citizenship for U.S.-born children of undocumented immigrants drew predictable scorn from some prominent Californians.

State Attorney General Xavier Becerra said the president’s “scapegoating and fear-mongering” was “reckless and unconstitutional,” while House Minority Leader Nancy Pelosi, appearing on Stephen Colbert’s “Late Show,” said the plan announced last fall was in keeping with Trump’s policy of “taking babies out of the arms of their moms.”

But there was a time when leading Californians were on the other side of the same issue when it came before the federal courts. And one of them was Earl Warren, then the state’s attorney general and now regarded as a civil rights pioneer.

It happened during World War II, months after the Japanese attack on Pearl Harbor. An organization called Native Sons of the Golden West sued San Francisco’s voter registrar for refusing to remove U.S.-born Japanese Americans from the voter rolls.

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The group’s lawyer was Ulysses S. Webb, who had served as California’s attorney general from 1902 until his retirement in 1939. At a hearing in a Bay Area federal court, Webb argued that nonwhite children of immigrant parents — specifically, Americans of Japanese descent — were not entitled to birthright citizenship because the Declaration of Independence and the Constitution were created “by and for white people.”

The state was not a party to the suit. But it was endorsed by Warren, Webb’s successor as attorney general, and later the state’s governor and the nation’s chief justice.

The Native Sons’ challenge was rejected by federal courts, including the Supreme Court — the same court that upheld the government’s wartime displacement and imprisonment of 120,000 Japanese Americans, two-thirds of them U.S. citizens. Judges relied on a ruling by the Supreme Court in a San Francisco case in 1898 that said — contrary to Trump’s recent pronouncement — that the Constitution guarantees U.S. citizenship to anyone born in the United States.

But the proceedings offer a stark portrayal of a time of racial and ethnic hostility.

Webb’s argument — that Japanese Americans were “unfit for citizenship” because of “racial characteristics of dishonesty, deceit and hypocrisy” — reflected not only wartime paranoia but also longtime disparagement of Asians living in the U.S., dating back at least to the Chinese Exclusion Act of 1882. That law, which prohibited immigration of Chinese laborers, stayed on the books until 1952.

Warren, a member of Native Sons of the Golden West since 1919, said national security, not racism, motivated him to endorse the suit and a proposed constitutional amendment to deny U.S. citizenship to anyone of Japanese ancestry. He also became an ardent supporter of expelling Japanese Americans from California during World War II, even before President Franklin D. Roosevelt’s June 1942 internment order. Warren said California’s Japanese population was in position to carry out “a tremendous program of sabotage.”

As governor, first elected in 1942, Warren signed bills approved by the Legislature to deny fishing licenses to Japanese Americans who were noncitizens and to take away some of their property. But later, as Supreme Court chief justice, he became a champion of minority rights, writing the epic 1954 ruling that outlawed racial segregation in public schools and presiding over a court that expanded the rights of voters and criminal defendants.

But it was only in a letter published after his death in 1974 that Warren said he “deeply regretted” his support of the wartime Japanese removal.

California’s current political role as a supporter of immigrants’ rights “is a very new development,” said Sam Erman, an assistant law professor at the University of Southern California and a legal history scholar. “For a long time, one of the central drivers of immigration policy in the U.S. was anti-Chinese sentiment, and California was the center of that.”

The state has been the port of entry for Asians entering the United States, and for many years its labor unions “saw low-cost overseas labor as a threat,” Erman observed. In 1943, the California State Federation of Labor endorsed a constitutional amendment that would have denied citizenship to Americans of Japanese or Chinese descent. And Warren, Erman said, “illustrated how people running for elected office are mirrors of public opinion.”

The landmark court case on birthright citizenship began in the late 19th century in San Francisco, where Wong Kim Ark was born in 1873 to Chinese immigrant parents. His parents returned to China in 1890, eight years after passage of the Chinese Exclusion Act. Wong went to visit them twice, and after the second visit, in 1894, customs officials in San Francisco refused to let him leave the steamship and said he was not a U.S. citizen.

He remained confined for five months until a federal judge decided in his favor. The government appealed directly to the Supreme Court, which ruled 6-2 in 1898 that Wong was protected by the 14th Amendment, guaranteeing U.S. citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”

The court reaffirmed the ruling in later cases, and most, though not all, legal analysts have concluded that it applies to U.S.-born children of all immigrants. Opponents of birthright citizenship for children of undocumented immigrants, including California Gov. Pete Wilson in 1993, have periodically proposed amending the Constitution, which would require approval by two-thirds of each house of Congress and legislatures in three-quarters of the states.

Trump, however, said in an interview that aired two days before the Nov. 6 election that he had been assured he could repeal birthright citizenship by executive order and planned to do so. He hasn’t said who assured him and hasn’t issued any such orders since the election. Republicans in Congress have regularly introduced bills along the same lines, but those have gone nowhere.

The 1942 suit by Native Sons of the Golden West was one of the last serious challenges to the Supreme Court’s ruling. Webb, arguing in federal court, noted that the country’s first Nationality Act, passed in 1790, authorized naturalization only for “free white persons.” The 14th Amendment, he said, was intended to allow former slaves to become citizens, but not to apply to children of all races or ethnicities, including Japanese, who happened to be born in the United States.

San Francisco’s lawyer replied that the Supreme Court had already settled the issue. Attorneys from the leftist National Lawyers Guild, arguing on the city’s side, accused Webb of advocating “fascist principles.” A week later, U.S. District Judge Adolphus St. Sure — appointed in 1925 by President Calvin Coolidge — issued a brief ruling saying the issue “has been definitely decided,” in favor of birthright citizenship, by the Supreme Court in 1898.

Webb turned to the Ninth U.S. Circuit Court of Appeals in San Francisco, which heard his arguments in February 1943, then halted the hearing as the city’s lawyer was preparing to respond. According to accounts of the proceedings, the judges briefly whispered among themselves, then announced that they were upholding St. Sure’s ruling without the need for further arguments. The Supreme Court denied review of Webb’s appeal in May 1943, and the case was over.

The issue has not disappeared, however. Some conservative legal scholars have argued that the 1898 ruling did not resolve the question of whether undocumented immigrants’ U.S.-born children are entitled to citizenship, because Wong Kim Ark’s parents entered legally. Whether through an order by Trump or an act of Congress, the scope of birthright citizenship could wind up before a Supreme Court with a solidly conservative majority and two current Trump appointees.

Greg Robinson, a history professor at Quebec University who has written extensively on the 1942 case and applauded its conclusion, says the ultimate outcome is uncertain.

“While the political system proved weak in 1942 — the Native Sons got the California political leadership on board or at least silent — even at the height of the wartime period, the courts rejected the position quite decisively,” Robinson said. “I don’t know whether we will be so fortunate in the future.”

Bob Egelko has been a reporter since June 1970. He spent 30 years with the Associated Press, covering news, politics and occasionally sports in Los Angeles, San Diego and Sacramento, and legal affairs in San Francisco from 1984 onward. He worked for the San Francisco Examiner for five months in 2000, then joined The Chronicle in November 2000.

His beat includes state and federal courts in California, the Supreme Court and the State Bar. He has a law degree from McGeorge School of Law in Sacramento and is a member of the bar. Coverage has included the passage of Proposition 13 in 1978, the appointment of Rose Bird to the state Supreme Court and her removal by the voters, the death penalty in California and the battles over gay rights and same-sex marriage.